Felix v. Clayton et al

Filing 10

Order Dismissing Second Amended Complaint for Failure to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) AND 28 U.S.C. § 1915A(b)(1) (ECF No. 9 ). Defendants Roberts, Gates and Barenchi terminated. The Court grants Plaintiff thirty (30) days leave from the date of this Order to file a Third Amended Complaint as to Defendant Clayton only which cures all the deficiencies of pleading noted. Signed by Judge Gonzalo P. Curiel on 5/18/23.(All non-registered users served via U.S. Mail Service with order and blank Third Amended Civil Rights Complaint)(jmo) Modified on 5/18/2023 to correct text (jmo).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONALD FELIX,
CDCR #AS4135,

Case No.: 3:22-cv-0559-GPC-KSC
ORDER DISMISSING SECOND
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§ 1915(e)(2)(B)(ii) AND 28 U.S.C.
§ 1915A(b)(1)

Plaintiff,

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vs.

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DAVID CLAYTON, S. GATES, S.
ROBERTS, R. BARENCHI, et al.,
Defendants.

[ECF No. 9]

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I.

Procedural History

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Donald Felix (“Plaintiff” or “Felix”), currently incarcerated at Richard J. Donovan

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Correctional Facility, is proceeding pro se and in forma pauperis (“IFP”). Felix filed a civil

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rights complaint pursuant to 42 U.S.C. § 1983 on April 22, 2022, alleging Defendants

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violated his Eighth Amendment right to adequate medical care. ECF No. 1. The Court

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dismissed his original complaint for failing to state a claim pursuant to 28 U.S.C.

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§§ 1915(e) and 1915A. ECF No. 3. Felix then filed a First Amended Complaint, which the

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Court also dismissed without prejudice for failure to state a claim. ECF No. 5. The Court

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gave Plaintiff an opportunity to amend, and Felix filed a Second Amended Complaint

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(“SAC”) on December 3, 2022. ECF No. 9.
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II.

Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Plaintiff’s SAC requires a pre-answer screening pursuant to 28 U.S.C.

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§§ 1915(e)(2)(B) and 1915A(b). Under these statutes, the Court must sua sponte dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a

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claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d

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1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.

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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The

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purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not

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bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)

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(citation omitted).

Standard of Review

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“The standard for determining whether [a] Plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

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2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). Detailed factual allegations are not required, but “[t]hreadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Id. at 678. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-

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harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss

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v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Plaintiff’s Allegations

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B.

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In his SAC, Felix alleges Clayton, his primary care physician in 2019, confiscated

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disability medical equipment from him. ECF No. 9 at 3. Specifically, he alleges Clayton

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took his “special orthopedic shoes,” which had been “prescribed to aid and assist [with his]
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hammertoe birth defect.” Id. Felix’s hammertoe condition “impedes his balance and causes

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discomfort and pain.” Id. Plaintiff further alleges Defendants Clayton, Gates, Chief of

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Healthcare Correspondence/Appeals, Roberts, Chief Medical Officer and Barenchi, Chief

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Medical Executive, “failed to properly respond and act upon” grievances he has submitted

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“since 2019,” in which he “requested pain management, adequate medical care. . . and re-

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issue of his [orthopedic shoes] to prevent further injury discomfort and pain.” Id. at 2-3.

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Felix states the pain has “impaired” his ability to “participate in normal work duties and

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activities.” Id. at 3. In addition, the pain has caused him to suffer for “the last 3 or more

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years.” Id.

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Felix seeks money damages and an injunction preventing Clayton, Gates, Roberts
and Barenchi from “obtain[ing] licenses to practice medicine.” Id. at 7.

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C.

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Felix sues David Clayton, S. Gates, S. Roberts and R. Barenchi in both their

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individual and official capacities. Id. at 2. While Felix raises three claims in his SAC, the

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underlying supporting facts for each claim are identical. See id. at 3–6. In Count I, he

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alleges Clayton, Gates, Roberts, and Barenchi violated his Eighth Amendment right to

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adequate medical care. Id. at 3. In Count II, Felix states Clayton, Gates, Roberts, and

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Barenchi violated his Eighth Amendment right to be free from cruel and unusual

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punishment. Id. at 4. And as to Count III, he alleges all four defendants violated his right

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to due process and equal protection when they failed to adequately respond to his

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grievances. Id. at 4–5.

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Discussion

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Eighth Amendment

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Because Felix raises violations of the Eighth Amendment in both Counts I and II,

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the Court will discuss them together. As discussed in this Court’s previous dismissal orders,

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when a prisoner’s Eighth Amendment claim is based on inadequate medical care, he must

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allege two things to state a claim: (1) a serious medical need and (2) deliberate indifference

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to that need by prison officials. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006).
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First, a plaintiff must allege a “serious medical need by demonstrating that [the]

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failure to treat [his] condition could result in further significant injury or the unnecessary

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and wanton infliction of pain.” Jett, 439 F.3d at 1096 (citation omitted). Here, Felix states

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Clayton “confiscated” his orthopedic shoes, which had been previously prescribed to assist

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him with his hammertoe. As a result of not having his orthopedic shoes, Felix alleges he is

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unable to “perform work duties” or participate in other activities without pain and

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discomfort. ECF No. 9 at 3. The Court finds the facts set forth in the SAC meet the “low

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threshold” required to allege a serious medical need. See, e.g., Peralta v. Dillard, 744 F.3d

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1076, 1086 (9th Cir. 2014) (“We’ve held that the existence of chronic and substantial pain

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indicates that a prisoner’s medical needs are serious.”); Doty v. County of Lassen, 37 F.3d

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540, 546 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’ medical need include (1) the existence

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of an injury that a reasonable doctor would find important and worthy of comment or

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treatment, (2) the presence of a medical condition that significantly affects an individual’s

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daily activities, and (3) the existence of chronic or substantial pain.”).

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Second, to state an Eighth Amendment claim, Felix must also plausibly allege the

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defendants’ response to his objectively serious medical need was “deliberately indifferent.”

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Estelle, 429 U.S. at 106. To do so, he must allege facts to show: (1) a purposeful act or

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failure to respond to the prisoner’s pain or possible medical need; and (2) harm caused by

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the indifference. Jett, 439 F.3d at 1096. “Under this standard, the prison official must not

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only ‘be aware of the facts from which the inference could be drawn that a substantial risk

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of serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung,

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391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer v. Brennen, 511 U.S. 825, 837

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(1994)).

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As to Clayton, Felix alleges only that Clayton “confiscated” his orthopedic shoes.

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See ECF No. 9 at 3. Felix provides no facts to show Clayton was aware of his hammertoe

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condition at the time. He alleges no facts regarding any medical appointments he had with

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Clayton. He also fails to allege any facts regarding what medical treatment Clayton

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provided or failed to provide him. See id. He states only that Clayton was his “primary care
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physician” at the time his shoes were confiscated and that the shoes had been previously

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prescribed to him. Id. In short, Felix alleges he disagrees with Clayton’s decision. But “[a]

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difference of opinion between a physician and the prisoner––or between medical

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professionals––concerning what medical care is appropriate does not amount to deliberate

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indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012). To allege deliberate

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indifference, the Felix must plausibly allege the treatment provided by Clayton “was

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medically unacceptable under the circumstances and that [Clayton] chose this course in

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conscious disregard of an excessive risk to [Felix’s] health.” Colwell v. Bannister, 763 F.3d

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1060, 1068 (9th Cir. 2014) (quoting Snow, 681 F.3d at 988). He has not done so in his

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SAC. Specifically, he fails to allege facts to suggest Clayton was subjectively aware there

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was “substantial risk of serious harm” in confiscating the shoes. See Estelle, 429 U.S. at

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106; Jett, 439 F.3d at 1096. As such, Felix has failed to state an Eighth Amendment claim

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against Clayton.

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As for Defendants Roberts, Gates and Barenchi, Felix’s allegations are even more

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sparse. He states that “all defendants failed to train, monitor, and supervise all medical staff

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members under each of their supervisors.” ECF No. 9 at 3. As discussed in this Court’s

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previous orders, there is no supervisory liability under 42 U.S.C. § 1983. Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). A supervisor is only liable for the “constitutional

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violations of … subordinates if the supervisor participated in or directed the violations, or

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knew of the violations and failed to act to prevent them.” Id. (citations omitted); see also

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Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983

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suits, a plaintiff must plead that each Government-official defendant, through the official’s

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own individual actions, has violated the Constitution.”). As such, Plaintiff must allege

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Roberts, Gates and Barenchi had “(1) personal involvement in the constitutional

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deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful

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conduct and the constitutional violation.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776,

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798 (9th Cir. 2018) (quotation marks and citation omitted); King v. Cnty. of Los Angeles,

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885 F.3d 548, 559 (9th Cir. 2018). Plaintiff has done neither. He has failed to allege any
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facts which suggest Roberts, Gates and/or Barenchi had any personal involvement in his

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medical care or that any causal connection existed between their conduct and Plaintiff’s

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alleged Eighth Amendment violations. Therefore, Plaintiff has failed to state an Eighth

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Amendment claim against Roberts, Gates and Barenchi.

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In sum, there are simply insufficient facts in the SAC to plausibly allege Clayton,

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Roberts, Gates, and/or Barenchi were “deliberately indifferent” to Felix’s medical needs.

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See Estelle, 429 U.S. at 106. Therefore, the Court sua sponte dismisses Felix’s Eighth

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Amendment claims (Counts I & II) for failing to state a claim upon which relief can be

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granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678; Lopez,

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203 F.3d at 1126–27.

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2.

Due Process and Equal Protection

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In Count III, Felix alleges Defendants violated his rights to due process and equal

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protection by failing to adequately respond to grievances related to his medical care. ECF

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No. 9 at 4.

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As for the due process aspect of his claim, Felix alleges “all defendants” failed to

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“properly respond and act upon” the grievances he filed in which he “requested pain

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management, adequate medical care. . . therapy and the reissue [of his orthopedic shoes].”

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Id. Inmates, however, have no stand-alone due process right related to administrative

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grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams,

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855 F.2d 639, 640 (9th Cir. 1988) (holding that there is no protected liberty interest to a

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grievance procedure). California’s regulations grant prisoners a purely procedural right:

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the right to have a prison appeal. See Cal. Code Regs. tit. 15, §§ 3084–3084.9 (2014). In

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other words, prison officials are not required under federal law to process inmate

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grievances in a certain way. Thus, the denial, rejection, screening out of issues, review, or

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cancellation of a grievance does not constitute a due process violation. See, e.g., Evans v.

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Skolnik, 637 F. App’x 285, 288 (9th Cir. 2015) (stating a prison official’s denial of a

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grievance does not itself violate the constitution); Towner v. Knowles, No. S-08-cv-2823-

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LKK-EFB, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (finding allegations that
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prison officials screened out inmate appeals without any basis failed to indicate a

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deprivation of federal rights); Williams v. Cate, 1:09-CV-00568-OWW-YNP PC, 2009 WL

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3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the

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vindication of his administrative claims.”). Accordingly, Plaintiff cannot and does not state

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a cognizable claim against any defendant based on the processing and/or denial of any

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inmate grievance. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678;

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Lopez, 203 F.3d at 1126–27.

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Felix also fails to state an equal protection claim against any defendant. The Equal

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Protection Clause requires that persons who are similarly situated be treated alike. City of

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Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Shakur v. Schriro,

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514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by either

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(1) showing defendants intentionally discriminated against a plaintiff based on his

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membership in a protected class, Comm. Concerning Cmty. Improvement v. City of

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Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082

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(9th Cir. 2003), or (2) showing that similarly situated individuals were intentionally treated

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differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon

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Dep’t of Agr., 553 U.S. 591, 601–02 (2008); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,

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592 (9th Cir. 2008). Felix fails to allege he is a member of a protected class or that similarly

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situated individuals were treated differently without a legitimate purpose. Indeed, even

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when construed liberally, the SAC is devoid of factual allegations relevant to an equal

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protection claim. Thus, Felix fails to state an equal protection claim as to any defendant.

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See City of Cleburne, 473 U.S. at 439.

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Accordingly, Count III is sua sponte dismissed because Felix has failed to state a

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due process or equal protection claim against Clayton, Roberts, Gates, and Barenchi. See

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28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678.

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III.

Leave to Amend

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In light of his pro se status, the Court GRANTS Plaintiff one final opportunity to

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amend his Eighth Amendment claim with respect to Clayton only. See Rosati v. Igbinoso,
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791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint

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without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely

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clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting

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Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). However, because Plaintiff has

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already been granted two opportunities to allege the personal involvement of Roberts,

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Gates and Barenchi in the alleged constitutional violations or a connection between their

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alleged wrongful conduct and the constitutional violations, the Court DISMISSES the

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claims against Defendants Roberts, Gates and Barenchi with prejudice. See ECF Nos. 3, 5.

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IV.

Conclusion and Order

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For the above reasons, the Court DISMISSES Plaintiff’s Second Amended

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Complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) and GRANTS him

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thirty (30) days leave from the date of this Order to file a Third Amended Complaint as to

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Defendant Clayton only which cures all the deficiencies of pleading noted. Plaintiff’s Third

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Amended Complaint must be complete by itself without reference to his previous

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pleadings. Defendants not named and any claim not re-alleged in his Third Amended

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Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.

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v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended

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pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”).

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If Plaintiff fails to file a Third Amended Complaint within the time provided, the

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Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure

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to state a claim upon pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and his failure

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to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera,

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427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the

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opportunity to fix his complaint, a district court may convert the dismissal of the complaint

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into dismissal of the entire action.”). Finally, the Clerk of the Court is DIRECTED to

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provide Plaintiff with a blank court-approved form Third Amended Civil Rights Complaint
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pursuant to 42 U.S.C. § 1983 for his use and convenience.
IT IS SO ORDERED.
Dated: May 18, 2023

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